1 The Honorable MARSHA J. PECHMAN 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 SHAWN MURINKO and DISABILITY RIGHTS WASHINGTON, a nonprofit membership organization for the federally mandated Protection and Advocacy Systems, Plaintiffs 10 11 12 13 14 v. CHERYL STRANGE, in her official capacity as Secretary of the Washington State Department of Social and Health Services, and SUSAN BIRCH, in her official capacity as Director of the Washington State Health Care Authority, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Defendants 15 16 17 NO. 19-cv-00943-MJP I. 1. OVERVIEW Plaintiff Shawn Murinko was separated from his wife, his two daughters, his 18 home, his job, and his community for more than six months because Defendants failed to provide 19 him necessary services to enable him to return home. Despite having no medical reason to be 20 hospitalized since December 8, 2018, Mr. Murinko was forced to reside at Harborview Medical 21 Center because Defendants did not provide him with residential habilitation services for which 22 he is eligible that would enable him to return to his life. Although he has since been able to 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 2 3 at imminent and serious risk of unnecessary hospitalization and institutionalization. 2. Plaintiff Murinko is an adult with developmental disabilities who has intensive 4 needs for long-term supports and habilitative services and has no desire to receive these services 5 in an institutional setting. He has been determined eligible to receive residential and habilitative 6 support services in the community. But due 7 available, Plaintiff lost support services when he was hospitalized for an injury and the 8 Defendants were unable to replace these necessary services. He was unable to discharge from the 9 Harborview Medical for nearly eight months longer than necessary 10 because the Defendants failed to provide the necessary services. Now, because Plaintiff is still 11 not receiving the same type and level of services he needs and had been receiving, and because 12 any future injuries would likely lead him to again lose his services and be stranded in a hospital, 13 he is at continued risk of being re-hospitalized where he again would be indefinitely separated 14 from his family and community. As a result, Plaintiff is at risk of suffering unnecessary 15 institutionalization and segregation. 16 3. Plaintiff Disability Rights Washington (DRW) brings this case as an associational 17 plaintiff on behalf of its constituents, which includes Plaintiff Murinko and other people with 18 developmental and intellectual disabilities and related conditions who need the type of 19 community-based residential habilitation services that Plaintiff Murinko needs and lost. 20 4. The Defendants and their agencies, the Department of Social and Health Services 21 (DSHS) and the Health Care Authority (HCA), are responsible for providing Plaintiff Murinko 22 and other qualified individuals with intellectual disabilities and related conditions with Medicaid 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 services to ensure their health and welfare with reasonable promptness and in the most integrated 2 setting appropriate to their needs. 3 5. Despite assessing Plaintiff Murinko to be eligible for and authorizing residential 4 support services, Defendants have no plan to ensure that Plaintiff will actually receive these 5 services and avoid unnecessary institutionalization and segregation. Defendants are failing to 6 meet his health and welfare needs, provide him services with reasonable promptness, or furnish 7 reasonable modifications to its service models to prevent him from being placed in a facility 8 where he would be unnecessarily segregated from his community and family. According to a 9 recent report by the Office of Developmental Disabilities Ombuds (ODDO) and based upon 10 information and belief formed by investigation of counsel, many other DRW constituents are 11 being stranded in inappropriate settings such as acute hospitals due to the 12 provide them with community-based services necessary for discharge. This failure violates their 13 et seq., 14 Section 504 of the Rehabilitation Act o 15 16 17 et seq., the Olmstead v. L.C., 527 U.S. 581 (1999), and the Social Security Act, 42 U.S.C. § 1396 et seq. 6. This litigation seeks injunctive and declaratory relief to require Defendants to 18 provide community-based integrated placement for Mr. Murinko and others in order to avoid 19 institutionalization, segregation, or discharge without appropriate supports. Without injunctive 20 and declaratory relief, Mr. Murinko and others will continue to suffer, by being either 21 unnecessarily hospitalized, unnecessarily institutionalized or segregated, or at risk of serious 22 injury or death if they are discharged to homes without adequate services. 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 2 3 II. 7. PARTIES Plaintiff Shawn Murinko. Mr. Murinko is a Medicaid beneficiary who previously received 24/7 residential habilitative services as a Medicaid Core waiver participant through 4 . Unfortunately, Mr. Murinko 5 suffered an accident on Halloween night of 2018 that caused him to be hospitalized for two 6 broken legs. Although he had been ready for discharge since December 8, 2018, he remained 7 hospitalized until June 28, 2019. Defendants have still not provided him with the Core waiver 8 funded Medicaid services to which he is entitled and needs. 9 8. Plaintiff Disability Rights Washington. Plaintiff Disability Rights Washington 10 (DRW), a nonprofit corporation duly organized under the laws of the State of Washington, is the 11 statewide protection and advocacy system designated by the Governor of the State of 12 Washington to protect and advocate for the legal and civil rights of those residents of this state 13 who have disabilities, pursuant to the Developmental Disabilities (DD) Act, 42 U.S.C. §§ 15041- 14 45, the Protection and Advocacy of Individuals with Mental Illness (PAIMI) Act, 42 U.S.C. §§ 15 10801-51 and RCW 71A.10.080(2). DRW is governed by a board of directors comprised 16 predominantly of people with disabilities and their family members. This board is advised by 17 two advisory councils, the Disability Advisory Council and the statutorily mandated Mental 18 Health Advisory Council, also primarily comprised of people with disabilities and their family 19 members. 20 not limited to, Plaintiff Murinko and other Washington residents with developmental and 21 intellectual disabilities and related conditions. 22 23 9. Defendant Cheryl Strange. Defendant Cheryl Strange is the Secretary of DSHS, the state agency that includes the Developmental Disabilities Administration (DDA). DSHS, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 4 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 through DDA, is responsible for implementing the Home and Community-Based services 2 authorized under the Medicaid Act for individuals with developmental disabilities. Ms. Strange 3 is sued in her official capacity only. All alleged acts by Ms. Strange, DSHS, and the 4 Developmental Disabilities Administration were taken under color of state law. 5 6 10. Defendant Susan Birch. Defendant Susan Birch is the Director of the Washington State Healthcare Authority (HCA). The HCA is the designated single state agency 7 8 program is administered in a manner consistent with all state and federal laws. Ms. Birch is sued 9 in her official capacity only. All alleged acts by Ms. Birch and the HCA were taken under color 10 of state law. 11 12 III. 11. JURISDICTION AND VENUE Jurisdiction of this Court arises under 28 U.S.C. § 1331 because this action arises 13 under the laws of the United States, and 28 U.S.C. § 1343(3) and (4), which confer on the federal 14 district courts original jurisdiction over all claims asserted pursuant to 42 U.S.C. § 1983 to 15 redress deprivations of rights, privileges or immunities guaranteed by Acts of Congress and the 16 United States Constitution. 17 12. Venue is proper pursuant to 28 U.S.C. § 1391(b). A substantial part of the events 18 19 Western District of Washington and Defendants may be found here. 20 21 22 23 IV. LEGAL FRAMEWORK A. The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act 13. Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131- 12134, and the Rehabilitation Act of 1973, 29 U.S.C. § 794, are designed to ensure that FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 5 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 individuals with disabilities receive their services in the least restrictive, most integrated setting 2 appropriate. 3 14. 4 5 istorically, society has tended to 6 isolate and segregate individuals with disabilities, and, despite some improvements, such forms 7 of discrimination against individuals with disabilities continue to be a serious and pervasive 8 9 10 12101(a)(2). 15. inferior status in our society, and are severely disadvantaged socially, vocationally, 11 ng individuals with 12 disabilities are to assure equality of opportunity, full participation, independent living, and 13 economic self- 14 15 16. -(7). Title II of the ADA applies to public entities, including state or local governments and any departments, agencies, or other instrumentalities of state or local governments. 42 16 17 reason of such disability, be excluded from participation in or be denied the benefits of the 18 services, programs, or activities of a public entity, or be subjected to discrimination by any such 19 20 17. riteria 21 22 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 6 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 impairing accomplishment of the objectives of the publ 2 3 18. 4 the most integrated setting 5 6 7 8 nondisabled persons to the fullest e 19. The U.S. Supreme Court has held that Title II of the ADA prohibits the 9 unjustified institutionalization of individuals with disabilities, noting that segregation of people 10 nted assumptions that persons so isolated are incapable or 11 12 activities of individuals, including family relations, social contacts, work options, [and] 13 economic indepen 14 20. Olmstead v. L.C., 527 U.S. 581, 597-600 (1999). According to case law and the Statement of the Department of Justice on 15 Enforcement of the Integration Mandate of Title II of the ADA and Olmstead v. L.C., the ability 16 to state a claim under Title II of the ADA and Olmstead is not limited to people currently in 17 institutional or other segregated settings, but applies equally to those at serious risk of 18 institutionalization or segregation (e.g. 19 20 Available at 21 http://www.ada.gov/olmstead/q&a_olmstead.htm 22 the harm of in 23 claim for illegal discrimination. Id. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 7 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 2 21. modifications in policies, practices, or procedures when the modifications are necessary to avoid 3 4 5 22. Like the ADA, the Rehabilitation Act prohibits discrimination against people with disabilities under any program or activity that receives federal financial assistance. 29 U.S.C. § 6 federal financial 7 8 qualified persons with disabilities to discrimination on the basis of disability, or that have the 9 purpose or effect of defeating or substantially impairing accomplishment of the objectives of the 10 11 -(ii); 45 C.F.R. § 84.4(b)(4)(i)-(ii). These implementing regulations also require entities receiving federal 12 13 see 14 also, 45 C.F.R. § 84.4(b)(2). 15 B. Title XIX of the Social Security Act 16 23. Having chosen to participate the Medicaid program, the State of Washington is 17 required to operate its Medicaid services in compliance with the Social Security Act, 42 U.S.C. § 18 1396, and its implementing regulations. Section 1915(c) of the Social Security Act, 42 U.S.C. § 19 1396n(c), allows states to submit a request to the U.S. Secretary of Health and Human Services 20 21 home and community-based services as an alternative to institutional care in an Intermediate 22 Care Facility (ICF). 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 8 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 24. In order to comply with federal requirements governing Medicaid Home and 2 Community-Based Services (HCBS) waivers for people with intellectual and developmental 3 disabilities, the Defendants must ensure that Medicaid services for which each individual is 4 eligible are provided with reasonable promptness and 5 welfare. 42 U.S.C. § 1396a(a)(8); 42 U.S.C. §1396n(c)(2)(C). Defendants must also ensure that 6 7 in which the individual resides is chosen by the individual. 8 9 V. 25. BACKGROUND Defendants provide and authorize payment for community-based residential 10 11 Defendants fund community-based residential habilitation services through the Core and 12 Community Protection Waivers, both of which are Home and Community-Based Services 13 (HCBS) Medicaid waivers. 14 26. Community-based residential habilitation services are typically delivered by 15 privately operated for-profit or non-profit supported living agencies. In addition, residential 16 habilitative services are also delivered through the State Operated Living Alternatives (SOLA) 17 program, which is a supported living program run by DDA. 18 19 27. Residential habilitation services provided by private supported living agencies and the SOLA program are a combination of training, personal care, and supervision to address 20 21 22 e services should be provided in integrated settings and support individuals 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 9 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 in opportunities to engage in a variety of community-based activities. 42 C.F.R. § 2 441.301(c)(2)(i). 3 28. Under the approved Core and Community Protection HCBS waivers, the limit to 4 the amount, frequency, or duration of residential habilitation services is determined by the 5 A] 6 assessment), specific support needs listed in the assessment, support provided by others (e.g. 7 family members), and the number of people living in the household who can share the support 8 9 10 (Levels 1-3) to daily support with intermittent checks through the night (Level 4) to 24/7 onsite support (Levels 5-6). 29. When waiver participants are seeking new residential habilitation service 11 12 support needs, history, and preferences. The case managers then submit this referral packet to 13 DDA resource managers, who send the packets to private supported living agencies that are 14 certified to deliver community-based residential habilitation services. 15 30. If a supported living agency receiving a referral packet is interested in serving an 16 individual, the agency can notify DDA to proceed with starting services. DDA permits supported 17 living agencies to decline referrals or rescind their offers to serve individuals, for any reason. 18 31. Once contracted, DDA permits a supported living agency to also terminate 19 DDA 20 imposes no obligations on agencies to continue serving a client until a new provider is found. 21 32. If no supported living agency receiving the packet agrees to serve an individual, 22 DDA may send referral packets to additional agencies, or resend referral packets to the same 23 agencies. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 10 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 33. 2 provide the individual with alternative services that do not require the use of a private agency. 3 Nor does DDA provide the individual with any notice of their right to a fair hearing to address 4 DDA s failure to provide services with reasonable promptness or notice of other available 5 options. Instead, individuals must continue to wait indefinitely for a private supported living 6 agency willing to provide them with services, which may never occur, entirely defeating the 7 objective of administering services in the most integrated setting and with reasonable 8 promptness. 9 34. In addition to SOLA and certified supported living agencies, residential 10 See WAC 388-829C. This 11 model provides for an individual in-home provider and expands the pool of potential providers to 12 include individuals chosen by the Medicaid waiver participant who can meet the client needs and 13 meet the requirements in WAC 388-829C-040. 14 35. Defendants also provide for in-home caregiving services, or personal care 15 services, to assist individuals in their basic activities of daily living through the Community First 16 Choice (CFC) program. WAC 388-106-0270. Defendants authorize CFC personal care hours 17 based on an assessment of needs. Individuals authorized CFC personal care hours may hire 18 agencies to provide staff to serve as their in-home caregivers. CFC personal care services are not 19 equivalent to residential habilitation services available through the Core and Community 20 Protection HCBS waivers. 21 36. Individuals who need long-term care may also receive facility-based services in 22 Adult Family Homes or Skilled Nursing Facilities (SNF). Both of these facility-based settings 23 require individuals to live with other individuals with disabilities needing long-term care FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 11 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 services, limit privacy for raising a family or require separation from family, and are more 2 segregated than in-home services. 3 37. Under the federal -admission Screening and 4 Resident Review (PASRR) requirements, individuals with developmental disabilities may not be 5 admitted to a SNF unless the placement is necessary and appropriate to meet their needs. 42 6 U.S.C § 1396r(b). 7 8 9 VI. FACTUAL ALLEGATIONS A. Plaintiff Murinko 38. Plaintiff Murinko is a Core waiver participant who, until last year, had a 10 supported living provider that been delivering 24/7 residential habilitative services to meet his 11 health and welfare needs. These services enabled Plaintiff to live in his own home with his wife 12 and two children, enjoy a successful career, and live a typical integrated lifestyle. 13 14 39. On or about October 31, 2018, Plaintiff Murinko suffered broken legs while trick- or-treating with his children and was hospitalized at Harborview Medicaid Center (hereinafter 15 ). Upon Plaintiff s hospitalization, DDA stopped paying his supported living 16 provider, who then terminated services. Defendants have not promulgated any rules, contract 17 provisions, or policies for preventing waiver service providers from terminating services at will, 18 nor has it established any practices to ensure the financial viability of continuing services in the 19 event Plaintiff Murinko or other constituents of Plaintiff DRW are hospitalized. 20 40. By December 8, 2018, Plaintiff Murinko recovered from his broken legs to the 21 extent that he no longer required inpatient hospitalization. But without a provider to deliver the 22 in-home care he had been receiving and continued to need, Plaintiff was unable to timely 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 12 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 discharge and remained essentially trapped at Harborview until July 2019, almost eight months 2 later. 3 41. On February 1, 2019, DDA assessed Plaintiff Murinko to need 24-hour residential 4 care, to include full support for hygiene tasks and household tasks, physical support to participate 5 fully in the community, and full support getting from place to place throughout the community in 6 order to assure his health and welfare. 7 42. DDA referred Plaintiff Murinko to other supported living agencies but was 8 unsuccessful in identifying any provider willing and able to offer Plaintiff the services he needs 9 to safely discharge home. Although DDA provides Core waiver funded residential habilitation 10 services directly in its State Operated Living Alternatives (SOLA) program, it did not make these 11 services available to Plaintiff. 12 43. In March 2019, Plaintiff agreed to accept in-home personal care through the CFC 13 program from a home care agency as an interim solution while DDA searched for a new 14 residential habilitation provider. However, the home care agency was unsuccessful in recruiting 15 enough staff to fill the hours of care that Plaintiff would require for a safe discharge. 16 44. On May 1, 2019, Plaintiff Murinko requested a companion home, with 17 reasonable modifications that would meet the needs DDA assessed Plaintiff to have. Plaintiff 18 requested an adjustment to the daily rate to provide sufficient compensation for the hours of care 19 he would need, as well as approval to relax the live-in requirement to allow the provider to live 20 nearby and available to him as needed. To date, this request has not been granted. 21 45. On May 23, 2019, Harborview informed Plaintiff Murinko that a SNF in 22 Bremerton had agreed to admit him, although he did not meet the level of care criteria for skilled 23 nursing. He declined to discharge to a setting that was inappropriate to his needs and where he FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 13 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 would be ineligible for the Core waiver, unable to continue his job, and distanced from his wife 2 and two children who live in Thurston County. 3 46. On June 11, 2019, Harborview issued Plaintiff Murinko a notice that he had not 4 met inpatient criteria since December 8, 2018, and provided him with a target discharge date of 5 June 17, 2019. Harborview noted that services to discharge home are not available, but provided 6 no specific discharge alternatives, except the SNF in Bremerton. Having not received a response 7 to his request for a modified Companion Home, Plaintiff notified DSHS of his imminent 8 discharge and requested SOLA services to support him in his home upon discharge. 9 47. On June 14, 2019, during a care conference with Plaintiff Murinko, Harborview 10 CFC personal care 11 services. However, no SNF was currently available and the home-care agency to provide CFC 12 personal care services had still not recruited sufficient staff to provide a minimally adequate 13 amount of in-home care services. That afternoon, DDA requested that Plaintiff sign a consent to 14 refer him to an Adult Family Home, but did not offer SOLA services or approve his request for a 15 modified Companion Home. 16 17 18 48. On June 28, 2019, Plaintiff Murinko discharged to his home with limited personal care services funded by Medicaid CFC and another time-limited non-Medicaid source. 49. Despite the multiple contracted homecare agencies, Plaintiff Murinko has been 19 unable to find enough caregivers to provide services for all the hours he has been assessed to 20 need and authorized to receive. However, he agreed to accept fewer hours of caregiving than he 21 needs in order to be able to discharge from Harborview and return to his family, home, and job. 22 23 50. caregivers have called in sick or had to leave because they were unwell. Furthermore, he has not FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 14 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 been able to find any additional agencies or independent providers who can provide staff to work 2 the remaining hours for which he has been authorized to receive care. With limited personal care 3 providers to furnish all of the assistance Plaintiff Murinko needs, he is at risk of further injury to 4 his health and safety. 5 6 7 51. Plaintiff Murinko has not received residential habilitation services since October 31, 2018, despite his ongoing need and eligibility for this service under the Core waiver. 52. Plaintiff Murinko continues to be at imminent risk of being unnecessarily 8 segregated in a facility that is not appropriate to his needs, because he was discharged to his 9 home without appropriate services. 10 B. Plaintiff DRW 11 53. As the protection and advocacy system for the State of Washington, Plaintiff 12 DRW investigates allegations of abuse and neglect, including allegations of inadequate services 13 and failure to implement care or discharge plans. DRW has received and is responsible for 14 investigating credible complaints about other constituents of DRW who are facing fates similar 15 to those faced by Plaintiff Murinko. Specifically, DRW has continued receiving allegations 16 regarding its constituents who have lost their Medicaid waiver funded supported living providers 17 and are now languishing in inappropriate settings, including but not limited to acute hospitals, 18 without residential habilitation and other Medicaid waiver services necessary to ensure their 19 health and welfare. 20 54. Last year, DRW attempted to assist one of its constituents with developmental 21 disabilities who was receiving supported living services from SL Start, a provider who was 22 decertified for failing to meet state regulatory standards for numerous clients, including this 23 constituent. After being transferred to Aacres, another supported living provider owned by the FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 15 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 same parent company that owned 2 advocated for Defendants to provide its constituent with alternative residential habilitation 3 services, but they did not provide her with these necessary services or ensure she would receive 4 them from another provider. As a result, she went several weeks with no residential services 5 6 to ensure adequate supported living services were available to protect this 7 health and welfare. 8 1 55. was released by the 9 Office of Developmental Disabilities Ombuds (ODDO) to document the problem of many DDA 10 clients languishing in hospitals because they had no supported living provider willing to deliver 11 services they need to safely discharge. ODDO is housed by Plaintiff DRW and shares 12 constituents with Plaintiff DRW, but operates as a private, independent office pursuant to RCW 13 43.382.005. 14 56. 15 had lost supported living services that they had been receiving through DDA HCBS waivers. In 16 each of these examples, the individuals were waiting in hospitals for residential habilitative 17 services because their supported living providers had terminated services and no other provider 18 had accepted their referrals. Some of these individuals had behavior support needs and were 19 being physically or chemically restrained because they were in an inappropriate environment and 20 no longer had the habilitative services to implement positive behavior support plans and other 21 skill-based trainings to help them avoid harming themselves or others. 22 23 1 See https://ddombuds.org/wp-content/uploads/2018/12/DD-Ombuds-Hospital-Report-12.10.18-Final.pdf (last visited July 19, 2019) FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 16 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 57. report entitled 2 2 In this May 2018 report, ODDO documented several examples of DDA 3 clients in crisis due to supported living providers refusing or terminating services. Although 4 many examples discussed crises precipitated by the inability of parents and families to continue 5 providing primary supports, the report included one example of an individual who had been in 6 the hospital for over six weeks with no medical need because his residential provider terminated 7 services. By contrast, the report provided an example of one DDA client who was able to access 8 SOLA services. In this case, the individual was able to live in the community with well-trained 9 staff who can support and accommodate his needs. 10 58. Despite these reports, Defendants have not implemented systemic policy changes 11 12 living services. Defendants have not expanded SOLA to be available to community based 13 hospital patients needing supported living services to discharge, nor have they contracted with 14 other supported living providers to ensure services be continuously available to meet individual 15 health and welfare needs. 16 59. DRW has engaged in advocacy on behalf of people with disabilities for over forty 17 years, and over the past twenty years, DRW has undertaken significant systemic litigation to 18 protect the rights of its constituents with intellectual disabilities and related conditions to ensure 19 they receive individualized and appropriate care in the least restrictive setting appropriate to their 20 needs. 21 participants who need community-based supported living services in order to discharge from 22 23 2 See https://ddombuds.org/wp-content/uploads/2018/05/Diverting-Crisis-Final-5.8.18.pdf (last visited July 19, 2019). FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 17 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 unnecessary hospitalizations and other inappropriate settings, the interests of DRW and the 2 affected individuals in this case are aligned. 3 4 5 VII. CLAIMS FOR RELIEF FIRST CLAIM: DECLARATORYAND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 6 60. Plaintiffs re-allege the paragraphs above. 7 61. Plaintiff Murinko individuals Although Plaintiff Murinko and 8 proven fully capable of living in an integrated setting in the 9 10 community, Defendants have not consistently provided them the services needed to do so. 62. 11 Defendants have failed to provide Plaintiff Murinko 12 constituents community-based services that they need in order to avoid segregation in an 13 institution in violation of Title II of the ADA, 42 U.S.C. § 12132 and its implementing 14 regulations. 15 63. 16 Plaintiff Murinko 17 placing them at risk of unnecessary and unjustified segregation, in violation of 28 C.F.R. § 18 35.130 (b)(3). 64. 19 Pursuant to 42 U.S.C. § 12133 and 42 U.S.C. § 1983, Plaintiffs are entitled to 20 d 21 bringing this action. 22 23 s constituents to discrimination on the basis of disability by SECOND CLAIM: DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT 65. Plaintiffs re-allege the paragraphs above. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 18 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 66. Plaintiff Murinko qualified individuals with 2 disabilities under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (a). Defendants 3 agencies, DSHS and HCA, receive federal financial assistance. 4 67. Defendants and their agencies violate Section 504 of the Rehabilitation Act and 5 its implementing regulations by denying Plaintiff Murinko 6 access to integrated community-based programs appropriate to meet their needs, thereby putting 7 them at risk of institutionalization. 8 68. Pursuant to 29 U.S.C. § 794 and 42 U.S.C. § 1983, Plaintiffs are entitled to 9 10 bringing this action. 11 THIRD CLAIM: DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF TITLE XIX OF THE SOCIAL SECURITY ACT 12 69. Plaintiffs re-allege the paragraphs above. 70. Plaintiffs are entitled to declaratory and injunctive relief pursuant to 42 U.S.C. § 13 14 1983 that Defendants have acted under color of state law to violate Title XIX of the Social 15 Security Act by failing to provide them with (1) Medicaid benefits with reasonable promptness, 16 42 U.S.C. § 1396a(a)(8); (a)(10)(A) and its implementing regulations; (2) a meaningful choice of 17 providers, including a choice between institutional and community-based services, 42 U.S.C. § 18 1396n(c)(2)(B); (C); and (3) necessary safeguards to protect their health and welfare needs, 42 19 U.S.C. § 1396n(c)(2)(A). Plaintiffs are also entitled to 20 incurred in bringing this action. 21 VIII. DEMAND FOR RELIEF 22 WHEREFORE, Plaintiffs requests that this Court: 23 1. Enter judgment in favor of Plaintiffs; FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 19 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 2 2. Declare that the Defendants failure to provide community based residential habilitation services under the Core or Community Protection waivers to Mr. Murinko and 3 places them at 4 risk of unnecessary institutionalization and segregation, and violates the Title II of the ADA, 5 Section 504 of the Rehabilitation Act, the Medicaid Act. 6 3. Preliminarily and permanently enjoin Defendants from continued violations of 7 Title II of the ADA, Section 504 of the Rehabilitation Act, the Medicaid Act, and require 8 Defendants to ensure that Mr. Murinko and DRW constituents (a) are provided with appropriate, 9 integrated, community-based residential services with reasonable promptness to ensure their 10 health and welfare are protected; (b) are discharged from the hospital with adequate home care 11 supports; and (c) are not discharged to or placed in an inappropriate institutional setting. 12 4. 13 In order to ensure the above, Plaintiffs ask that the Court issue: a) An injunction ordering Defendants to, as soon as the Court deems 14 practicable, assign SOLA staff to Mr. Murinko and other DRW constituents needing 15 supported living services in order to safely discharge from the hospital, permanently or 16 until such time that a supported living provider contracts to serve them; or 17 b) An injunction ordering Defendants to modify their contracts with private 18 supported living providers to 19 Murinko and other DRW constituents needing supported living services in order to safely 20 discharge from the hospital have continuously available services necessary to meet their 21 health and welfare needs. 22 5. Plaintiffs ask that the Court award them attorney fees and costs; and 23 6. Award such other relief as is just and proper. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 20 19-cv-00943-MJP to ensure that Mr. Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 2 DATED: August 2, 2019. DISABILITY RIGHTS WASHINGTON 3 4 5 6 7 /s/ Sarah Eaton Sarah Eaton, WSBA #46854 Susan Kas, WSBA #36592 315 5th Avenue South, Suite 850 Seattle, WA 98104 Tel. (206) 324-1521; Fax (206) 957-0729 Email: sarahe@dr-wa.org susank@dr-wa.org _ 8 PAUKERT & TROPPMANN, PLLC 9 10 11 12 /s/ Andrew Biviano Andrew Biviano, WSBA # 38086 522 W. Riverside Avenue, Suite 560 Spokane, WA 99201 Tel. (509) 232-7760; Fax (509) 232-7762 Email: abiviano@pt-law.com 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 21 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729 1 2 3 CERTIFICATE OF SERVICE I hereby certify that on August 2, 2019, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: 4 Nissa Iversen at NissaI@atg.wa.gov 5 Kathryn Krieger at KathrynK1@atg.wa.gov 6 7 8 I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this 2nd day of August 2019, at Seattle, Washington. 9 10 Mona Rennie, Legal Assistant 11 12 13 14 15 16 17 18 19 20 21 22 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 22 19-cv-00943-MJP Disability Rights Washington 315 5th Avenue South, Suite 850 Seattle, Washington 98104 (206) 324-1521 Fax: (206) 957-0729